Line to take

Not all papers held by a firm of solicitors as a consequence of it representing or advising a public authority client will be held on behalf of the public authority but in general terms, information held solely for the solicitor’s own administrative purposes as well as the solicitor’s own working file of papers belongs to the solicitor.

Further Information

Section 3 of the FOIA states as follows:

“3. (1) …

(2) For the purposes of this Act, information is held by a public authority if-

(a)....or

(b) it is held by another person on behalf of the authority”

In cases where legal advice has been sought by a public authority client, the question arises as to whether the file held by the lawyer is held on behalf of the public authority or whether the solicitor’s firm holds the information in its own right and thus any information held by them would not be caught by the Act.

This issue was considered by the Tribunal in the case of Mrs B Francis and the South Essex Partnership Foundation NHS Trust (‘the Trust’) in which the requested information related to the death of the complainant’s son and included legal advice from three firms of solicitors. In broad terms the Tribunal found that information held for the solicitor’s own administrative purposes as well as the solicitor’s own working file of papers belonged to the solicitor i.e. these papers were not held on behalf of the public authority client. However the Tribunal also referred to the 1999 Law Society’s Guide to the Professional Conduct of Solicitors (in force at the time of the request) which “...advises solicitors that client files are likely to contain a mixture of documents belonging to the client and to the solicitor...” (para 23).

From paragraphs 21 - 26 of the Tribunal’s decision, the following general principles were identified as follows:

Documents owned by the public authority client:

All documents created or received by the solicitor whilst acting as the client’s agent (emphasis added) belong to the client. Such documents will include all transactional documents (and drafts thereof), correspondence passing between the solicitor and third parties and attendance notes of conversations between the solicitor and third parties whilst acting as the client’s solicitor and agent. This statement of principle arises from Leicestershire County Council v Faraday [1941] 2 KB 205; and Re Wheatcroft [1877] 6 Ch D 97 as referenced in Solicitors’ Negligence & Liability (Flenley & Leech (Tottle 2008).

The Law Society’s guidance provides that copies of letters received by the solicitor and made for the client’s benefit belong to the client.

The Tribunal indicated that where a file contains original documents (i.e. they have not been annotated by the solicitor) that these “may well belong to the client”.

Further comment on the solicitor acting as the client’s agent

To assist case-officers, the Commissioner considers that a solicitor will be acting as a client’s agent when he/she is ‘stepping into the shoes of the client’, for example, representing the client at meetings/Court or in correspondence/communication with third parties, and documents obtained whilst acting in this capacity belong to the client. However where the solicitor is acting as the client’s solicitor rather than as the client’s agent, it is likely that any information produced in this capacity will belong to the solicitor, for example, annotations on documents, case-related legal research etc. For clarity, clean copies of documents passed to the solicitor by the public authority client remain held on behalf of the client.

Documents owned by the solicitor

The solicitor’s working papers belong to the solicitor. Such papers include correspondence to and from the client, attendance notes of discussions with the client and drafts of letters and notes of other research. This statement of principle arises from Leicestershire County Council v Faraday [1941] 2 KB 205; and Re Wheatcroft [1877] 6 Ch D 97 as referenced in Solicitors’ Negligence & Liability (Flenley & Leech (Tottle

2008).

Papers relating solely to the internal administrative arrangements of the firm are the property of the firm. The Tribunal looked at the file belonging to Eversheds solicitors am found that it contained a file opening sheet and papers relating to billing with nothing of substance in relation to any named individual.

The Tribunal found that these papers “...related solely to the internal administrative arrangements of the firm and were clearly the property of the firm. The Tribunal found that the) were not papers held on behalf of the Trust...” (para 28).

Copies - the Law Society guidance provides that copies of letters, made for the benefit or protection of the solicitor, where the cost of copying is not regarded as an item chargeable against the client, belong to the solicitor.

A file may contain photocopies of documents bearing the solicitor’s annotations. These copies “may well be the working papers of the solicitor”.

Further comment on annotations

The Trust argued that the inquest bundle held by Bevan Brittan solicitors, who represented the Trust at the inquest into the death of the complainant’s son, was held by the solicitors in their own right because it was described as the working file used at the inquest and “heavily annotated” by the solicitor who had dealt with the case.

The Tribunal examined the bundle and found that only 14 of the 300 pages were annotated at all and that the small number of annotations could have been added by a solicitor or equally by earlier recipients of the documents in question. Also, the most heavily annotated page bore comments that appeared to be medical rather than legal in nature.

These findings led the Tribunal to say at paragraph 36:

"...the status of the bundle as working papers belonging to a solicitor depended largely on its annotated nature. The Tribunal concluded, on the balance of probabilities, that the annotation was already on the documents at the time they were passed to the solicitors. As such, it could not be regarded as a set of working papers....it is more likely that the bundle was a clean copy of the papers held originally for the purpose of representing the Trust at the inquest.. ..Accordingly, the Tribunal found that the Bevan Brittan papers were held by the firm on behalf of the Trust...”

As the Trust had already conceded that s.42 was not engaged in respect of Bevan Brittan’s papers, the Tribunal ordered that this information be disclosed to the complainant.

Note:

The Tribunal also looked at the file of papers held by Beachcroft Wansborough’s solicitors and found that it contained correspondence, attendance notes and annotated papers. In short, it was a copy of the solicitor’s working file. However the Tribunal’s first consideration was whether s.42 was engaged rather than considering whether the information was actually held on behalf of the public authority. The Commissioner would point out that his initial investigation would focus on what, if any, information is held on behalf of the public authority and only with this established would any exemptions be considered.